Mr.
Chairman, Members of the Subcommittee, thank you for providing this opportunity
to testify on the “The Immigration Reform and Accountability Act.”

There
is urgent need for this legislation, not least because of the events of September
11, 2001.
The immigration system must restructure to improve its capacity to carry out
the many enforcement and service functions required of it.The aim of immigration policy is to guard
against entry of those whose admission is unauthorized, particularly if they
pose a threat to our national security, while facilitating movements that are
beneficial. An effective immigration system requires both credible policy and
sound management.But, poor
organizational structure will foil even the best-intended management and
policies.

The
Immigration and Naturalization Service [INS] grew rapidly in the 1990s, for the
first time gaining resources more in keeping with the importance of its
mandate.Even as resources increased,
however, the demands on INS also grew, and the agency has been unable to keep
up with the increasing size and complexity of its workload.It remains unable to carry out effectively
either its service or its enforcement activities.

The
critique I offer today of the current organizational structure of INS derives
from more than twenty years of experience and analysis.As Director of the US Commission on
Immigration Reform, I led a comprehensive examination of the operations of INS,
as well as the other agencies involved in implementation of immigration policy,
at both the headquarters and field level. The Commission identified weaknesses
throughout the system. Although more fundamental reform of the overall
immigration system along the lines of the proposals made by the Commission
would be desirable, reorganization of INS’s functions
in particular remains urgently needed.For this reason, I support enactment of the proposed legislation.

Why is reform needed?

In
its 1997 report to Congress, the Commission on Immigration Reform outlined two
principal structural problems resulting from the current complex system for
implementing immigration policy: mission overload at the Immigration and
Naturalization Service and diffusion of responsibility across several federal
agencies, particularly for legal immigration matters. The result is a lack of
accountability for carrying out effectively and efficiently the major functions
of the immigration system.

These
problems have only worsened since the Commission’s report. On the enforcement
side, INS has made little headway in curbing unauthorized migration despite a
major infusion of funds, particularly for border control. There are an
estimated 8 million unauthorized foreigners in the US, up from 3.5 million in
1990, suggesting that the number increased an average 400,000 a year in the 1990s.
Weaknesses in enforcement derive from a host of reasons—some institutional, but
others related to the lack of political will to address the causes of
unauthorized migration.Although the
vast majority of unauthorized migrants come for work purposes and do not
themselves pose a security threat, tolerance of their entry and presence in the
country hampers efforts to close the back door of illegal migration—a backdoor
that terrorists can too easily exploit for their own purposes. I emphasize this
point because restructuring alone will not solve the problem of unauthorized
migration—a new commitment on the part of Congress and the Administration to
enforce immigration law must accompany the proposed organizational changes.

Problems
have also worsened with regard to immigration services.In some locations, it still takes well over a
year to approve naturalization applications.Gleaning information from federal agency data and reports from attorneys
handling these cases, it appears that the waits for legal immigration status
are even worse.Let’s say your U.S. citizen son living in Los Angeles[1] marries the foreign
student he met at university.It will
take two years for her to become a legal permanent resident:the processing time for an I-130 petition is
about six months (longer for spouses of legal permanent residents) and approval
of an adjustment of status application is another 18 months.If you are an employer in Los Angeles seeking permanent
resident status for an employee, the processing times are even longer because
of the delays in obtaining labor certification as well as adjustment to
permanent resident.

INS
plays a key role, though hardly the only one, in implementing every aspect of immigration policy. Its
mission is now too broad and complicated to manage properly.No one agency could have the capacity to
accomplish all of the goals of immigration policy equally well.Immigration law enforcement requires staffing,
training, resources, and a work culture that differs from what is required for
effective adjudication of benefits.Each
function requires serious attention from a senior executive who can be held
fully accountable for the performance of the activities within his or her
mandate.

Our
Commission was not the first to recognize this point.As early as 1931, the Wickersham
Commission, in its Report on the Enforcement of the Deportation Laws of the
United States, noted the conflict arising when the same agency is responsible
for adjudicating applications for benefits and deporting aliens.The Wickersham
Commission found that "the confusion of functions limits the effective
performance of each function involved" and recommended separating the
functions. More recently, the Commission for the Study of International
Migration and Cooperative Economic Development also concluded that placing
incompatible service and enforcement functions within one agency creates
problems: competition for resources; lack of coordination and cooperation; and
personnel practices that both encourage transfer between enforcement and
service positions and create confusion regarding mission and
responsibilities.

Separating
enforcement and benefits functions will lead to more effective enforcement and
improved service to the public.

What type of
reorganization is needed?

The
Commission on Immigration Reform recommended a more comprehensive restructuring
of the immigration system than is contained in the “The Immigration Reform and
Accountability Act.” Under the Commission’s proposal, the responsibility for
immigration enforcement would remain within the Justice Department in a new
Bureau for Immigration Enforcement.The
responsibility for immigration services, now dispersed among the State, Justice
and Labor Departments, would be consolidated into a new office for Citizenship,
Immigration and Refugee Admissions.The
Commission’s recommendation has the advantage of dealing with both
problems--mission overload and diffusion of responsibilities--found in the
current system.

Although
I continue to believe that the type of consolidation of immigration services
outlined by the Commission is desirable, I see a more urgent need to address
the organizational problems at INS.The
internal restructuring plan at INS already recognizes the value of separating
services and enforcement, and the planning team has addressed many of the
operational issues that need to be addressed in effecting such separation at
the field level.“The Immigration Reform
and Accountability Act,” by creating co-equal agencies within the Justice Department,
one responsible for immigration services and the other for immigration
enforcement, under the direction of an Associate Attorney General, takes this
concept further and in several directions that I believe will increase the
ability of the federal government to carry out effectively its
immigration-related responsibilities.

The
strengths of the approach taken in the bill are as follows:

·The office of the
Associate Attorney General will give necessary policy guidance, leadership and
coordination to the many immigration functions in the Department of Justice. The immigration-related
policy making and coordination at the departmental level of Justice has tended
to be ad hoc, understaffed and
crisis-driven.In some administrations,
the INS and the Executive Office for Immigration Review (EOIR) have reported to
the Associate Attorney General and in others to the Deputy Attorney General,
who generally serve as a clearinghouse through which immigration-related
concerns pass from the responsible agencies) to the Attorney General.The Office of Special Counsel for
Immigration-Related Unfair Employment Practices reported to the Assistant
Attorney General for Civil Rights and the Office of Immigration Litigation
reported to the Assistant Attorney General for the Civil Division. Under the
proposed legislation, a newly created Associate Attorney General will have full
responsibility for policy development and coordination of activities across all
of the agencies responsible for implementing immigration policy, giving these
functions greater coherence. As an Associate Attorney General, this person
should also be well situated to coordinate with and access information and
other resources under the management of other Justice Department agencies,
particularly the Federal Bureau of Investigations that has often been unwilling
to share needed intelligence with INS in a timely, effective manner.

·Each agency has
responsibility for a distinct set of functions related to a single, clearly
conceived mandate.The Bureau of Immigration Services and
Adjudications will have sole responsibility for adjudication of immigration
services, including nonimmigrant and immigrant visa petitions, naturalization
petitions, asylum and refugee applications, and other services performed by
INS. While improving services, the Bureau should also devote significant
resources to ensuring that fraudulent applications for admission are quickly
identified and appropriate actions taken, something that does not occur
sufficiently at present despite the potential for abuse of legal admissions.
The Bureau of Immigration Enforcement will have sole responsibility for the
functions now performed by the Border Patrol, inspections, detention and
deportation program, intelligence program and investigations.Each will have its own chain of command to
ensure maximum accountability.

·Each agency will be led
by a Director who has had extensive management experience in his or her
agency’s area of competence.In the proposed
bill, responsibility for each of the two principal functions--services and
enforcement--rests with a Director with at least ten years of experience in the
applicable area of responsibility.Under
the current structure, the persons responsible for actual implementation of
services and enforcement are several layers below the Commissioner of INS.By elevating the level of the persons
accountable for immigration services and immigration enforcement, as well as
requiring a substantial level of prior management experience, the legislation
recognizes the national importance, size and scale of operations, and resources
devoted to each function.

·Each agency will have
the opportunity to reorganize its field structure to ensure the most effective
implementation of its responsibilities.For
example, the Bureau of Immigration Services and Adjudications could designate
new offices, designed specifically with service delivery in mind.Ideally, to avoid long lines and waits for
service, there would be smaller offices in more locations than current INS district
offices.The Bureau for Immigration
Enforcement would focus its offices in areas where serious violations of
immigration law take place.In border
communities, the new Bureau could combine into one office, with one responsible
official, what is now spread between the Border Patrol sectors and the INS
district offices. The legislation should mandate that the new agencies report
back to Congress on their proposed restructuring at the field level, and
require the General Accounting Office to assess whether the proposed reforms
address adequately problems in field implementation that now impede effective
services and enforcement.

·Each agency can
concentrate on recruiting, training, deploying and promoting staff with the
needed skills and experience to carry out its functions.Staff undertaking law enforcement activities
require significantly different skills, experience and outlook than do staff
responsible for providing customer services.The Bureau of Immigration Services and Adjudications should look towards
hiring, training and promoting persons committed to efficiently running
large-scale benefits adjudication programs and establishing customer-friendly
environments. The Bureau of Immigration Enforcement should look towards hiring,
training and promoting persons with interest and experience in pursuing careers
in law enforcement.In each case, the
agency should provide a career ladder that permits it to retain and promote
competent staff.

·Each agency will have
its own financial resources to carry out its functions and will be accountable
for its activities.For the most part, fees cover adjudication of
applications for immigration services whereas appropriations from general
revenues cover enforcement activities.Because so many support systems, facilities and data systems are shared,
it is difficult to determine currently whether fees for services subsidize
enforcement or vice versa.What we can
say definitely, though, is that the clients paying for immigration services are
not now receiving the services for which they pay.Separating the two functions means that each
agency will be able to set its own budget, seek its own appropriation of
general revenue funds and, where appropriate, set its own fee structures.Each agency will also be held accountable for
its management of resources.

·The new position of
Ombudsman will help improve accountability and customer service.At present, applicants for immigration benefits
have nowhere to turn—except congressional offices—to complain or otherwise raise
concerns when the government fails to provide effective services.In hearings throughout the country, the
Commission on Immigration Reform repeatedly learned of egregious violations of
customer service from US citizens and immigrants applying for immigration
benefits as well as congressional staff who investigated complaints.In addition to helping individual applicants
receive the services to which they are entitled, the information presented to
the Ombudsman should prove invaluable in improving the overall systems used in
processing and adjudicating applications.

What else needs to be done?

Having described the
advantages of splitting and elevating the immigration service and immigration
enforcement functions as presented in the “The Immigration Reform and
Accountability Act,” let me offer recommendations on two issues not covered
sufficiently in the bill.

The first
pertains to the diffusion of responsibility for immigration services.The reorganization of immigration functions
at the Department of Justice should help address some of the backlogs and
waiting times for receipt of immigration benefits, but it cannot on its own
overcome the delays caused by the unwieldy system that requires largely
sequential and sometimes duplicative actions on the parts of Justice, Labor and
State Departments.I urge Congress to
require the Attorney General, in consultation with the Secretary of State and
the Secretary of Labor, to report to Congress on ways to streamline the adjudication
of applications for immigration services, specifying actions that can be
undertaken under existing statutory authority and recommending statutory
changes where insufficient authority exists.

My second recommendation
pertains to policy development and oversight.The Commission on Immigration Reform recommended developing more fully
the capacity within the Executive Branch for policy development, planning,
monitoring, evaluation and oversight of operations. In the absence of effective
policy development and oversight, we can expect bad policymaking, poorly
developed programs, inadequate coordination across agencies, and almost
nonexistent program assessment and evaluation of outcomes.The establishment of a Policy Advisor in the
Office of the Associate Attorney General should help in this regard, but given
the many other departments with immigration responsibilities, there is urgent
need to improve policy development and monitoring across the federal
government.The Congress should also
make clear its expectation that the new offices responsible for both services
and enforcement will undertake systematic evaluations, bringing unbiased
outside resources to bear as necessary, so they will have the information
needed to continue to improve the effectiveness of policies and their implementation.

Thank you again for
providing the opportunity to present this testimony.I would be pleased to answer any questions
you have.

[1]Los Angeles is not unique; any number of other district offices
have similar waiting times.